186 Ga. 870 | Ga. | 1938
The sections of the Code referred to in the foregoing questions were all taken from the act of the General Assembly approved August 21, 1906, commonly known as the pure-food and drug act. Ga. L. 1906, p. 83. It appears from the caption and other portions of this act that it had the purpose, among others, of preventing adulteration, misbranding, and imitation of foods sold and intended for human consumption, under penalties for its violation. Section 4 contained several subsections, defining adulteration. This section is now contained in the Code, § 42-109. So far as material in this case, it is declared by this section that an article of food shall be deemed to be adulterated: “7. If it consists in whole or in part of a filthy, decomposed, or putrid animal . . or any portion of an animal unfit for food, whether manufactured or not.” Section 42-115, derived from section 6 of the original act, is as follows: “No dealer shall be prosecuted under the provisions of this title when he shall establish a guaranty signed by the wholesaler, jobber, manufacturer, or other party residing in this State, from whom he purchases such articles, to the effect that the same are not adulterated or misbranded within the meaning of this title, designating them. Said guaranty, to afford protection, shall contain the name and address
We proceed now to a consideration of the first question propounded. It appears that the petition alleged that the defendant, a retailer of meats, sold “some pig’s liver to the plaintiff’s daughter, which on the same day was cooked and eaten by [the plaintiff’s family], all of whom became suddenly ill on the following morning; that at the time of being sold the liver was in a deleterious and unwholesome condition, was contaminated by infectious matter, and was in a decomposed condition and unfit for food, and poisoned the plaintiff; and that the defendant was negligent in not inspecting the liver, in holding it out as fresh and whole
In view of what has just been said, we construe the question propounded by the Court of Appeals, not as inquiring whether the action should be taken as founded on the pure food law, but as asking only whether the petition alleges facts sufficient to show negligence as a matter of law, in the violation of that statute. As thus construed, the question must be answered in the affirmative. While the pure-food law was designed for the protection of the public, and did not in express terms declare other than public duties, the plaintiff as a member of the public for whose benefit it was enacted could invoke its provisions for the purpose of showing negligence as a matter of law, if injured by the violation of a duty so imposed. Platt v. Southern Photo Material Co., 4 Ga. App. 159 (2) (60 S. E. 1068); Georgia Southwestern & Gulf Railroad Co. v. Lasseter, 41 Ga. App. 154, 160 (152 S. E. 267); 45 C. J. 729, § 114; 20 R. C. L. 41, § 35. Under the pure-food act (§ 42-109 (7), supra), an article of food is adulterated if it consists in whole or in part of a “ filthy, decomposed, or putrid animal . . substance,” or of “any portion of an animal unfit for food.” The petition alleged that the “pig's liver” purchased from the defendant “was in a deleterious and unwholesome condition, was contaminated by infectious matter, and was in a decomposed condition and unfit for food.” These averments were sufficient to show a violation of the duty imposed by the statute not to sell “adulterated” food as defined therein, and reliance upon such breach as constituting negligence per se or as a matter of law; notwithstanding the petition may have contained other allegations to show negligence as a matter of fact. In pleading a cause of action, where a domestic or federal statute is relied on, it is unnecessary to incorporate a statement of the law. Gainesville Midland Railway v. Vandiver, 141 Ga. 350 (80 S. E. 997); Youmans v. Georgia & Florida Ry. Co., 142 Ga. 781 (83 S. E. 784); Atkinson v. Hardaway, 10 Ga. App. 389 (6) (73 S. E. 556); Western & Atlantic R. v. Meister, 37 Ga. App. 570 (140 S. E. 905). Whatever may be the ordinary signification of the word “adulterated,” the statute itself contains the definition applicable in this ease. United States v. Sprague, 208 Fed. 419; United
The first question includes reference to section 42-115. That section does not impose any duty whatever upon a seller of foods, or upon any one. It merely provides that no dealer shall be prosecuted under the provisions of the statute if he shall establish a prescribed guaranty signed by the person from whom he purchased. Under this section a dealer selling food which is adulterated within the meaning of the statute would not violate its provisions, and therefore would not be guilty of negligence per se, if he had obtained the prescribed guaranty; but the guaranty would not relieve him from the liability referred to in section 105-1101, if he is negligent as a matter of fact, in selling unwholesome food by the use of which another is injured. It follows that section 42-115 merely creates an exception to the statute in favor of those who obtain and establish the guaranty; and the plaintiff in this case was not required to negative such exception in her petition, its existence in a particular case being a matter for defense. Kitchens v. State, 116 Ga. 847 (43 S. E. 256); Hagan v. Townsend, 118 Ga. 682 (45 S. E. 478); Oglesby v. State, 121 Ga. 602 (2) (49 S. E. 706); Seale v. State, 121 Ga. 741 (5) (49 S. E. 740). The first question, construed as indicated above, is answered in the affirmative.
Questions 2 and 3 are both answered in the affirmative. The definition of an adulterated article of food as contained in section 42-109 (7), supra, is not limited to food in a sealed package.
The fourth question refers to a retailer who sells food of the kind described in the petition, without having taken the guaranty prescribed in section 42-115. From what has been said above, “the food described in the petition” may be taken to mean food which is adulterated within the meaning of section 42-109 (7). The question then is whether or not it is necessary, in order for a retailer of such food to be liable to a person made sick by eating it, for the dealer to have had “knowledge of the impurity of the food or to have been wanting in ordinary care in connection with its sale.” This question appears to present the chief ground of controversy in this ease, and we are not unmindful of its far-reaching importance. Counsel on both sides have discussed the effect of the pure-food statute upon the common-law provisions
As we construe the fourth question, it was intended to inquire whether in a case of this type, where a breach of the statutory duty is shown, it is still necessary for the plaintiff to establish that the defendant had actual knowledge of the impurity of the food or that he was wanting in ordinary care as a matter of fact. A proper answer to this inquiry depends upon the standard of the statute, and involves the question whether it would be necessary to show such knowledge or negligence in a prosecution for the penal offense. In a civil case of this kind the plaintiff is not required to establish more, on the issue of negligence, than a. violation of the statute, and from the terms of the pure-food act. (§ 42-109 (1)), it is clearly apparent that it does not include either knowledge of the impurity of the food or negligence in fact as.an ingredient of the offense of selling adulterated food, as therein de
Nothing to the contrary was actually decided in any of the following cases: Fleetwood v. Swift, 27 Ga. App. 502 (108 S. E. 909); Rowe v. Louisville & Nashville Railroad Co., 29 Ga. App. 151 (113 S. E. 823); McPherson v. Capuano, 31 Ga. App. 82 (121 S. E. 580); Copelands. Curtis, 36 Ga. App. 255 (136 S. E. 324); Maddox Coffee Co. v. Collins, 46 Ga. App. 220 (167 S. E. 306); Slaughter v. Atlanta Coca-Cola Bottling Co., 48 Ga. App. 327 (172 S. E. 723); Crowley v. Lane Drug Stores Inc., 54 Ga. App. 859 (189 S. E. 380). In none of these cases was there any reference to the pure-fóod act; and whether under the facts of any one or more of them this statute could have been invoked, these eases can be considered as physical precedents only, with little or no force as authority, in relation to such statute.' ' In
While no question as to the validity of the pure-food act is involved in the present inquiry, it may not he amiss to say that so long as the General Assembly keeps within its constitutional power, “the courts have nothing whatever to do with the wisdom, expediency, reasonableness, or justice of a statutory enactment. These